Fred Wertheimer Weighs In

Democracy 21's Fred Wertheimer weighs on, sort of, on Sen. McCain's dispute with the Federal Election Commission. His full response after the jump.

The shut down of the Federal Election Commission has taken center stage because there is no functioning agency to deal with the issue of whether bank loans taken out by Senator John McCain (R-AZ), and the collateral provided for those bank loans, means that Senator McCain cannot withdraw from the presidential primary public financing system and is bound by its spending limits for the rest of his primary campaign.

The Washington Post has noted in an article (February 27, 2008), "the dispute centers on the most esoteric aspects of campaign finance law." It also involves interpretations of the loan agreement between McCain and the bank, and the question of what constitutes "collateral" for the loan.

The dispute, which could have enormous consequences for the Democratic and Republican presidential nominees, is further complicated by the fact that the complex legal questions involved here are being raised in the intense heat of the battle for the presidency.

The unprecedented legal issues involved in this dispute raise questions of both campaign finance and commercial banking law, and are issues that have to be resolved by the FEC and potentially the federal courts.

Democracy 21 does not have the answers to the legal questions that have been raised. There are novel and close questions.

We do believe, however, that it is essential for the currently inoperative FEC to be reconstituted immediately, so that the FEC and potentially the federal courts can resolve the issues surrounding the McCain loans.

As Democracy 21 President Fred Wertheimer stated in a press release issued on January 2, 2008:

Shutting down the campaign finance enforcement agency at this critical stage of the national elections is an affront to the nation's citizens and worthy of a banana republic -- and in this case the buck stops with Senate Republican Leader Mitch McConnell.

The January 2 press release provided background information on the FEC shutdown and explained how Senator Mitch McConnell (R-KY) was blocking the FEC from being functional.

It is simply not the case, as some claim, that Senator Harry Reid (D-NV) is blocking Senate consideration of the FEC nominees, or that holds that were put on Senate consideration of FEC nominee Hans Von Spakovsky last year by Senators Russ Feingold (D-WI), Barack Obama (D-IL) and other Senators, still exist.

This was demonstrated by the up-or-down majority vote on each FEC nominee that was offered to and rejected by Senator McConnell in December 2007.

The January 2, 2008 Democracy 21 release stated:

On December 19, Senate Majority Leader Harry Reid (D-NV) proposed that the Senate have up-or-down majority votes on each of the four pending FEC nominees.

In so doing, Senator Reid offered Senator McConnell and the Senate Republicans the normal majority vote process for confirmation votes. He also showed that he had eliminated on the Democratic side the holds on voting on Von Spakovsky's nomination and any demands for 60 votes to confirm him.

But a majority up-or-down vote on Von Spakovsky was not enough for Senator McConnell. Apparently concerned that a majority of the Senate was not prepared to vote for Von Spakovsky, McConnell rejected the vote on Von Spakovsky and blocked the Senate from voting on the other three FEC nominees as well.

The January 2, 2008 press release further stated:

As Senator Reid stated on the Senate floor on December 19, ''facing possible defeat for their own nominee, the Republicans would prefer to hold the remaining 3 unobjectionable nominees hostage and render the FEC unable to function in the next election.''

Senator McConnell's position is that all four nominees must be confirmed together or else none will be confirmed.

"In rejecting a straight up-or-down vote on FEC nominee von Spakovsky, Senator McConnell is holding the other three FEC nominees and the country hostage at the direct expense of the integrity of our political system," Wertheimer stated.

''Senator McConnell wants Von Spakovsky carried to the FEC on the backs of the other three nominees, without having to bother with a Senate vote that Von Spakovsky might lose,'' Wertheimer said.

"The legal issues surrounding the McCain loans could not make clearer that it is essential for the FEC to be reconstituted immediately," Wertheimer stated.

"Senator McConnell must stop blocking up-or-down majority votes on each of the four pending FEC nominees or President Bush must withdraw the nomination of Hans Von Spakovsky in order for the process of reconstituting the FEC to move forward quickly," Wertheimer stated.

"All who are interested in resolving the legal issues in the McCain matter should join in calling for immediate action to reconstitute the FEC," Wertheimer said.

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Marc Ambinder is an Atlantic contributing editor. He is also a senior contributor at Defense One, a contributing editor at GQ, and a regular contributor at The Week.